Filed 8/31/23 P. v. Wiley CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

GARY JOE WILEY,

Defendant and Appellant.

 D081077

 (Super. Ct. No. SCD293494)

APPEAL from a judgment of the Superior Court of San Diego County, 

Francis M. Devaney, Judge. Affirmed.

Christine M. Aros, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Charles C. Ragland, Assistant Attorney General, 

Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff 

and Respondent.
2

A jury convicted Gary Joe Wiley of robbery (Pen. Code,1 § 211) and 

found that he also personally used a firearm in committing the offense 

(§ 12022.53, subd. (b)). Wiley contends on appeal that there is insufficient 

evidence to support his robbery conviction. We disagree and affirm the 

judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Robbery

Around 9:00 a.m. on the morning of August 23, 2021, security cameras

outside of American Legion on 47th Street in San Diego recorded a man 

wearing a yellow reflective vest exiting a car parked across the street. He 

walked up and down the street, returned to the car, and then meandered 

towards the intersection in front of American Legion, drinking from a cup in 

one hand and holding a white hard hat in the other. Around 10:03 a.m., he 

walked north along 47th Street out of the camera’s view. 

A few minutes later around 10:06 a.m., security cameras at Sunrise 

Market and Gas, located just north of American Legion along 47th Street,

recorded a man with the same physical appearance walking towards the gas 

station while holding a white lidded coffee cup and a white hard hat. The gas 

station footage, which provided a closer view of the man, showed that he wore 

a neon yellow reflective vest, a blue neck gaiter around his neck, and a brown 

camouflage head covering. As the man walked through the convenience store 

holding the cup and hard hat, at one point he spilled liquid from the cup into 

the hard hat and onto the floor. He wiped up the spill and threw the cup 

away in a trash can near the store’s entrance. 

An external camera recorded the man leaving the gas station and

walking back south down 47th Street at around 10:09 a.m. Around that 

1 All further statutory references are to the Penal Code.
3

same time, cameras at American Legion recorded a man with the same 

physical appearance, in a yellow reflective vest and holding a white hard hat, 

walking south on 47th Street. He returned to the parked car, and around 

10:16 a.m., he walked towards American Legion. 

Meanwhile, D.C. arrived for work at American Legion around that 

time, entering through the front door. Minutes later, the man in the yellow

vest tried unsuccessfully to enter American Legion through the front door

before circling around to the back of the building. At this point, the man’s 

blue neck gaiter was pulled over the lower half of his face. 

D.C. watched the man try to enter American Legion’s front door from a 

surveillance monitor feed in her office. She was not expecting anyone other 

than a cleaning crew, and because she did not recognize the man, she did not 

let him into the building. D.C. was in her office when she suddenly saw the 

man standing in the doorway, pointing a gun at her face and demanding 

money. Internal camera footage shows the man entered D.C.’s office around 

10:21 a.m. wearing a neon yellow vest, a blue gaiter around the bottom part 

of his face, and a brown camouflage head covering. 

The man kept the gun pointed at D.C. while she handed him cash from 

American Legion’s safe. D.C. handed the man approximately $3,000, and 

camera footage recorded the man leaving the building with the cash, jogging

to the same parked car he had arrived in, and driving away. 

B. The Investigation and Trial Evidence

D.C. called 911 and police arrived on the scene minutes later around 

10:35 a.m. D.C. described the suspect as a slim black male between 50 and 

60 years old, wearing a mask and a fluorescent yellow-green reflective vest

over dark clothing. That same day, an investigating detective reviewed

footage from American Legion’s surveillance cameras. He observed from 
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video footage recorded inside the office that the suspect had large blood 

vessels on his right arm. The detective also noted that someone fitting the 

suspect’s description had walked north along 47th Street shortly after 

10:00 a.m., before the robbery occurred. After determining that the suspect 

may have been walking to Sunrise Market and Gas, the detective went to the 

gas station convenience store around 3:00 p.m. that same day and reviewed

footage from the station’s security cameras. When he observed that the 

suspect had discarded a cup in the trash can, the detective immediately went 

to the trash can and retrieved a white lidded Styrofoam cup which matched 

the cup the suspect was holding in surveillance footage. 

The detective testified that the trash can contained “only a few items,” 

and that the cup he retrieved was the only item in the trash that resembled

the cup in the surveillance video. He noted that the cup was white with a 

brown oval logo, as depicted in surveillance footage. The convenience store

manager testified that the store does not offer white Styrofoam cups like the 

one found in the trash can, and a photograph admitted at trial showed that

the gas station uses colorful cups with a different design. 

In October 2021, lab results showed that DNA swabbed from the cup 

matched Wiley’s. The lab detected a single source of DNA from a swab of the

cup’s lid, taken from a location where one would drink. The investigating 

detective alerted police that Wiley was wanted in connection with a pending 

robbery investigation. 

Several months after the robbery in February 2022, a patrol officer 

stopped Wiley for riding his motorcycle without a helmet. After conducting a 

records check and discovering Wiley was wanted in connection with a crime, 

the officer arrested Wiley and brought him to police headquarters. A search 
5

of Wiley’s motorcycle uncovered construction gear, including an orange 

reflective vest and a yellow hard hat. 

The detective collected a DNA sample from Wiley’s mouth after his 

arrest, and lab results later showed “very strong support” for a match 

between Wiley’s DNA and the DNA swabbed from the cup found in the 

convenience store trash can. A forensic expert testified that while it was 

possible that DNA transferred onto the cup from another item in the trash, 

such transfer was not likely here. 

The detective also noted after Wiley’s arrest that Wiley matched the 

general description of the robbery suspect. The detective photographed 

Wiley’s forearms after observing that he had “veins that were protruding in 

his forearm” as the robbery suspect did.

An investigator obtained call detail records associated with Wiley’s 

phone number from the day of the robbery. Those records showed that on the 

morning of the robbery, calls made from Wiley’s phone number connected 

with cell towers located in the Mid-City area of San Diego, indicating his cell 

phone was in that area. Shortly before the robbery, call records showed that 

his cell phone was in American Legion’s vicinity at the same time the suspect 

appeared on surveillance cameras outside of American Legion. Around 

10:25 a.m., soon after the robbery occurred, Wiley’s number placed a call near 

American Legion, and minutes later, call data indicated his cell phone was 

moving away from the area. By 10:40 a.m., call data showed Wiley’s number 

making calls from the Mid-City area again. Several of the calls placed from 

Wiley’s number were made to a number associated with Wiley’s daughter. 

C. Other Witness Testimony

Wiley’s former supervisor testified at trial that Wiley had worked in 

construction for several years. In August 2021, the month of the robbery,
6

Wiley was working at a construction site in Mid-City. But his supervisor was

not at the job site on the day of the robbery, and he did not personally see 

Wiley that morning. According to pay stubs, Wiley’s work hours varied and 

sometimes he worked 40 hours a week with overtime, while other weeks he 

only worked 16 hours. Wiley had to wear a hard hat and reflective vest while 

on the job, but workers could “wear any color they like.” His supervisor saw

Wiley drive both a car and a motorcycle “off and on” to work, and he said he

never saw Wiley with a firearm or large amounts of cash. 

Wiley’s girlfriend testified that he was working almost every day in 

August 2021, except for Sundays. She said she never saw Wiley with a gun 

in August 2021, nor did she see him bring large amounts of cash home. But 

she was not with Wiley at the time of the robbery. 

D. Verdict and Sentencing

The People charged Wiley with robbery and alleged he personally used 

a firearm in committing the robbery. The jury found him guilty of robbery

and found true the firearm allegation. The trial court denied Wiley’s motion 

for a new trial, and after a bifurcated bench trial on alleged priors and 

aggravating factors, the court struck the firearm enhancement and sentenced 

him to 25 years to life in prison pursuant to the Three Strikes Law. (§ 667, 

subd. (e)(2)(ii).) Wiley timely appealed. 

DISCUSSION

Wiley contends there is insufficient evidence to support his conviction 

for robbery under section 211. More specifically, he contends that no 
7

substantial evidence supports a finding that he is the person depicted in 

surveillance videos robbing American Legion. We disagree.

On review, we must “ ‘examine the entire record in the light most

favorable to the judgment to determine whether it contains substantial

evidence—that is, evidence that is reasonable, credible, and of solid value—

that would support a rational trier of fact in finding [the defendant guilty]

beyond a reasonable doubt.’ [Citations.]” (People v. San Nicolas (2004) 34

Cal.4th 614, 657–658.) We will not reverse unless there is no hypothesis

upon which sufficient substantial evidence exists to support the conviction. 

(People v. Bolin (1998) 18 Cal.4th 297, 331.) We must “presume in support of

the judgment the existence of every fact the trier could reasonably deduce

from the evidence.” (People v. Jones (1990) 51 Cal.3d 294, 314.) “The same

standard applies when the conviction rests primarily on circumstantial

evidence.” (People v. Kraft (2000) 23 Cal.4th 978, 1053.) “An appellate court

must accept logical inferences that the jury might have drawn from the

circumstantial evidence.” (People v. Maury (2003) 30 Cal.4th 342, 396

(Maury).) “Given this deferential standard of review, a ‘defendant bears an

enormous burden in claiming there is insufficient evidence’ to support a

conviction.” (People v. Wear (2020) 44 Cal.App.5th 1007, 1020.)

We conclude that substantial evidence supports the jury’s finding that 

Wiley committed the robbery. Camera recordings from American Legion and 

the nearby gas station provided a nearly uninterrupted visual timeline of the 

robbery suspect’s movements and physical appearance before, during, and 

after the incident. Video footage first captured the suspect parking a car 

near American Legion and walking around the area wearing a distinctive 

yellow vest, drinking from a cup, and holding a white hard hat. The suspect 

then walked north, where gas station cameras captured a closer view of him 
8

with the same yellow vest, cup, and white hard hat, as well as a blue neck 

gaiter and brown camouflage head covering. The footage shows the suspect

discarding a white cup with a brown oval logo into the convenience store

trash can. The suspect then walked south into the view of the American 

Legion cameras, which captured him returning to his parked car briefly 

before making his way into American Legion. The video inside the office 

clearly shows a man wearing a reflective neon yellow vest, a blue neck gaiter,

and a brown camouflage head covering, all of which matches what the 

suspect wore when he was at the gas station. After departing American 

Legion with the cash, the suspect then jogged to the same parked car he 

arrived in. 

It was plainly reasonable for the jury to conclude, based on the 

continuity of the video footage both geographically and chronologically, that 

the suspect shown in the American Legion footage was the same individual

featured in the gas station videos. The suspect wore the same distinctive 

clothing and traveled a path that corresponded directly with the locations

surveilled by both sets of cameras. Furthermore, there is no evidence that 

anyone in American Legion’s vicinity or in the convenience store around the 

time of the robbery was similarly dressed or matched the suspect’s general 

appearance, such that the suspect might have been confused with someone 

else. 

It was thus also reasonable for the jury to conclude that the DNA from 

the cup in the convenience store trash can, which matched Wiley’s DNA, 

belonged to the suspect. The trash can contained “only a few items,” and no 

other item in the trash can was similar to the cup the suspect was holding in 

surveillance footage. The cups in the store had a different design, making it 

unlikely that the cup in evidence came from another individual in the store. 
9

The detective retrieved the cup mere hours after the robbery, and there is no 

evidence suggesting that the trash can was emptied in the time between 

when the suspect discarded his cup and when the detective found the cup 

bearing Wiley’s DNA. Furthermore, a forensic expert testified it was unlikely 

that Wiley’s DNA somehow transferred onto the cup from another item in the 

trash can. 

The call detail records associated with Wiley’s phone number further

support the conclusion that he was near American Legion when the robbery 

occurred. The fact that calls were made from Wiley’s number to his daughter 

indicate that he was the person making those calls. The records also show 

that his phone was in Mid-City before and after the robbery, which is 

consistent with his former supervisor’s testimony that Wiley was working at 

a construction site in Mid-City that month. 

Wiley cites cases in which courts found insufficient evidence to support

a conviction where the only link between the defendant and the crime scene 

was fingerprint evidence. (See, e.g., Mikes v. Borg (9th Cir. 1991) 947 F.2d 

353, 355–356 [insufficient evidence where case “rested exclusively upon the 

fact” that defendant’s fingerprints were found among 46 other fingerprints at 

the crime scene]; People v. Johnson (1984) 158 Cal.App.3d 850, 856

[fingerprint on container insufficient to show possession of contraband]; 

People v. Jenkins (1979) 91 Cal.App.3d 579, 584–585 [same]; Birt v. Superior 

Court (1973) 34 Cal.App.3d 934, 937–938 [fingerprint on cigarette lighter in 

rental vehicle insufficient to bind defendant over for trial in burglary case].)

But those cases are distinguishable because there is far more evidence 

beyond DNA connecting Wiley to the robbery. Surveillance footage and 

witness testimony showed that Wiley matched the suspect’s physical 

description. That same footage connected the cup itself, and the DNA found 
10

on the lid, directly to the robbery suspect. Wiley’s former supervisor testified 

that Wiley was working in construction at the time of the robbery, and 

Wiley’s call detail records also placed him at or near the scene when the 

robbery occurred. 

Although a different color hat and vest were found in Wiley’s

motorcycle at the time of his arrest, that difference could be explained by the 

fact that his arrest occurred several months after the robbery, and that his 

former supervisor allowed him to wear any color protective gear of his 

choosing. Moreover, a reasonable jury could conclude that the hat and vest 

were consistent with Wiley working in construction, which supports an

inference that he also wore construction gear at the time of the robbery. 

Accepting the logical inferences that the jury might have drawn from 

the evidence, we conclude there is sufficient evidence to support the jury’s 

finding that Wiley committed the robbery at American Legion. (Maury, 

supra, 30 Cal.4th at p. 396.)

DISPOSITION

The judgment is affirmed.

BUCHANAN, J.

WE CONCUR:

DATO, Acting P. J.

CASTILLO, J.